Guest commentary: Part 2, A Case for Military Proportionality: Disabling Nuclear Plants

By Henry Sokolski

Only a handful of cases exist in which US officials have applied US criminal law against soldiers who have harmed noncombatants. As a result, mining national case law for guidance is unlikely to produce many useful insights. That said, the US military has discouraged inflicting unnecessary harm on noncombatants.13

But what of the disproportionate targeting of civilian infrastructure and objects? Unfortunately, few (if any) specific national, military, or international legal cases regarding such indiscretions have been decided. To discourage disproportionate attacks against civilian infrastructure, the United States instead relies upon using written military doctrine, training, planning, and reviewing previous operations.14

The Pentagon’s most useful specific guidance, however, is the result of classified analysis. This guidance presents problems.

First, the guidance is at odds with the demands of domestic civil defense. In terms of domestic civil defense, the civil objects of greatest interest—oil, gas, water lines, electrical-supply systems, nuclear power plants, transportation systems, and public communications systems in the United States and in allied nations—are all public utilities. Therefore, protecting civil objects requires public engagement and sound, convincing narratives about how the objects might be attacked and what will or should be done to protect them. This domestic requirement cannot be met without sharing some of the very information the military keeps from the public.

Second, the failure to produce a public narrative about what civil objects should not be hit, and why, discourages informed civilian oversight of the military. Freed from public scrutiny, the military is under little pressure, if any, in planning operations to avoid disabling civilian objects.

Finally, excessive secrecy regarding the targeting of civil objects allows for overly permissive legal guidance. Currently, US legal guidance is all too similar to the guidance Russian and Israeli officials use. American, Russian, and Israeli officials have all argued in different ways that if a military commander determines striking an object is militarily necessary or important enough, it becomes a critical military object that can be attacked, even if the strike inflicts severe harm on noncombatants. Such permissive legal views can open the door to making disproportionate attacks.15

The point here is hardly academic. Current US Air Force targeting guidance and classified collateral-damage algorithms from the Pentagon (which discourage strikes against civilian objects capable of releasing harmful forces) clearly discourage the targeting of civilian objects capable of releasing harmful forces (for example, dams and power reactors or toxic chemical plants).16

Yet, The New York Times reported, in 2017, Air Force targeting guidance was short-circuited when a highly classified US special operations unit—Task Force 9—hit Syria’s Sadd al Furāt dam. The dam was on a “no-strike” list, and attacking it required top-level authorization. But Task Force 9 bombed the dam because the attack was deemed a military emergency. Although United States Central Command officials admitted the dam had been bombed, they insisted only the dam’s towers had been hit.17

Exactly what happened when the dam was hit and the government’s specific reasons for launching the attack have not yet been shared with the public. Yet, the Lieber Institute at West Point published a legal defense of the attack. The author argued that the dam was a “military objective.” As such, it was a legitimate target, even though attacking it might release harmful forces that could inflict severe harm to civilians. Although logical, this line of reasoning risks justifying almost any strike against civilian objects.18

This predicament raises the question: Is there a sounder line of reasoning that would recommend more restrictive guidance?

In 2022, foreign and military ministers in the European Union, the United Kingdom, and Germany declared Russian strikes against Ukrainian infrastructure and the Zaporizhzhya nuclear power plant were prosecutable war crimes. The United States took no position. In a war game conducted in 2022, close US Allies that have ratified Protocol I were at odds with Washington regarding how to respond to Russian attacks on Allied reactors. The United States’ Allies wanted to respond strongly to what they saw as a war crime, whereas the United States did not. In the game, the other NATO members were concerned NATO would be drawn into a larger conflict if Poland and Ukraine jointly attacked Russia. These concerns held up war operations and resulted in the United States using Article 5 of the North Atlantic Treaty to keep Poland from participating in a Ukrainian strike against Russia.11

Finally, temporarily disabling civilian infrastructure (for example, water, gas, and oil pumps; energy pipelines; telecommunications lines; and electrical-supply systems) can afford clear military advantages over physically obliterating civilian infrastructure, even if no hazardous forces are released. The temporary disablement of civilian infrastructure deprives one’s enemy of the ability to use infrastructure facilities, facilitates their subsequent use by one’s own forces in war, and allows for their speedy repatriation once the war is over.12

All of these points recommend fostering effective military applications of proportionality against civilian objects. The question is how.

What steps can the US military take to update its plans and operations for targeting and protecting civil infrastructure?

First, the Pentagon should publicly share much more information about its thinking than it has to date, which would allow for greater civilian oversight, sharpen military planning, and increase the clarity of current policy and legal guidance.

Second, the Pentagon should work with private industry and other government departments focused on civil-infrastructure protection—the US Department of Homeland Security and the US Nuclear Regulatory Commission—to produce convincing public narratives about why and how civil objects should be protected and to improve existing protection schemes. Planning to protect this infrastructure has long been underway, but under the protection of the Federal Energy Regulatory Commission’s Critical Energy / Electric Infrastructure Information, which keeps these plans from the public. What’s needed is a sensible tear sheet for public consumption.27

Third, the Department of War should offer Congress routine public reports about matters related to protecting civil infrastructure. The US government must prepare the public for a future in which the United States’ electrical-supply systems, energy pipelines, biological research facilities, potentially dangerous petrochemical plants, telecommunications systems, and civil nuclear facilities may come under attack. Setting the public’s expectations about what can and should be done, actively and passively, to defend these systems should not wait until an attack occurs.

Finally, training is critical. The Department of War’s military education training institutions should offer dedicated, unclassified courses that provide technical and historical instruction on the targeting and defense of civil objects. The instruction should be fortified by unclassified government simulations for civilians and military officials, which play out alternative targeting plans against civil objects that could release hazardous forces.

How will the US government accomplish these objectives? The first step is to make mastering these matters a requirement for military promotion. This step could be done quietly, without top-down scolding, legal hectoring, or creating centers. The best US military operators and planners already know civil objects and nuclear facilities are becoming increasingly significant military targets. The Pentagon should reward and support efforts to clarify what should be done to disable and protect civil objects and nuclear facilities.

Henry Sokolski is the executive director of the Nonproliferation Policy Education Center. He has worked in the Pentagon as the deputy for nonproliferation policy, as a consultant to the National Intelligence Council, as a member of the CIA’s senior advisory group, and as a Senate military and legislative aide. Sokolski is also the author or editor of numerous volumes on strategic weapons–proliferation issues, including China, Russia, and the Coming Cool War; Underestimated: Our Not So Peaceful Nuclear Future; and Best of Intentions: America’s Campaign against Strategic Weapons Proliferation.

©2025 Henry Sokolski

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